United States District Court, D. Massachusetts
MARCOS DASILVA and MATTEUS FERREIRA, on behalf of themselves and all others similarly situated Plaintiffs,
BORDER TRANSFER OF MA, INC., and PATRICK MCCLUSKEY, Defendants.
MEMORANDUM AND ORDER
Patti B. Saris Chief United States District Judge.
Marcos DaSilva and Matteus Ferreira worked as delivery
drivers for Defendant Border Transfer of MA, Inc.
(“Border Transfer”). They claim Border Transfer
improperly treated them as independent contractors when they
were, in fact, employees and that, as a result, Border
Transfer unlawfully deducted certain business expenses from
their pay. Plaintiffs bring claims under the Massachusetts
Wage Act against Border Transfer and its former president
Patrick McCluskey on behalf of a certified class of
individuals who entered into contracts with Border Transfer
to provide delivery services, personally provided such
services for Border Transfer for at least forty hours per
week, and were classified as independent contractors.
Defendants move for summary judgment on the class claims on
the basis that, even if Border Transfer misclassified its
drivers as independent contractors, they are not entitled to
recover the various deductions they seek. Defendants also
move for summary judgment on the individual claims of class
member Humberto Chantre. Finally, Plaintiffs seek summary
judgment on whether Border Transfer misclassified the class
members as independent contractors and whether McCluskey is
individually liable for Border Transfer's alleged Wage
hearing, the Court DENIES
Defendants' motion for summary judgment (Docket No. 108)
and ALLOWS IN PART and
DENIES IN PART Plaintiffs'
motion for partial summary judgment on liability (Docket No.
122). The Court also DENIES as moot
Plaintiffs' motions to strike the testimony of Thomas N.
Hubbard (Docket No. 115 and Docket No. 145) because
resolution of the motions for summary judgment does not
depend on his expert opinion.
following facts are undisputed except where otherwise stated.
in Hendersonville, Tennessee, Border Transfer is a property
broker registered with the Federal Motor Carrier Safety
Administration (“FMCSA”). See 49 U.S.C.
§ 13102(2). As a broker, Border Transfer arranges home
delivery services for large retail stores like
Sears. Border Transfer itself does not deliver
goods. Instead, it contracts with FMCSA-authorized motor
carriers to perform home deliveries. See 49 U.S.C.
§ 13102(14). It has around fourteen motor carriers
working at any given time out of its Westwood, Massachusetts
facility. It runs between fifteen and twenty delivery routes
per day and a few more around the holidays.
Transfer contracts with its motor carriers through
“Contract Carrier Agreements”
(“CCAs”). It has used two standard CCAs during
the period at issue in this case, one until early 2017 and
the other since. Each CCA states that the motor carrier is an
independent contractor of Border Transfer and that none of
the motor carrier's personnel are Border Transfer
employees. The motor carriers must own their own trucks and
are responsible for all operating expenses. The CCAs permit
Border Transfer to deduct from its payments to the motor
carriers for any liability it incurs for property loss or
damage. The motor carriers must carry certain types of
insurance, including for cargo damage and workers'
compensation for all of their workers. The motor carriers
cannot subcontract deliveries. The CCA in use through early
2017 includes detailed instructions on how drivers are to
perform their deliveries, but the newer CCA does not.
Transfer only enters into CCAs with corporate entities. Some
drivers formed corporate entities specifically to contract
with Border Transfer. Others did so before contracting with
Border Transfer. New drivers must submit their company name,
information on their compliance with Department of
Transportation requirements, and proof of insurance.
cases, Border Transfer contracts with motor carriers that
consist of a single driver who personally performs the
delivery services. That was the case with class
representative Marcos DaSilva, who entered into a CCA with
Border Transfer through Alpha Logistics Trucking, LLC
(“Alpha Logistics”) and worked for Border
Transfer between November 2014 and July 2015. He formed Alpha
Logistics because Border Transfer told him he needed a
corporate entity to work for it; a Border Transfer
representative even helped him fill out the paperwork to form
his LLC and get FMCSA approval. DaSilva worked five to six
days a week as a driver during his time with Border Transfer.
He did not work for any other company, and all of his income
came from Border Transfer deliveries.
other cases, Border Transfer contracts with motor carriers
that employ multiple drivers. That was the case with Matteus
Ferreira, the other class representative. Ferreira was the
joint owner of Father & Son Transporting LLC
(“Father & Son”) with his father, Marcos
Ferreira. Ferreira worked fulltime for Border Transfer from
May 2012 until November 2015, during which he did not do work
for any other company. Ferreira worked as a driver for the
duration of the contract, and Father & Son operated two
other trucks during this period.
Working for Border Transfer
perform their deliveries from Sears' Westwood,
Massachusetts warehouse. Each day, Border Transfer calls its
motor carriers to offer routes for the following day. Motor
carriers can accept or decline a route. Some drivers are
assigned to standby shifts and will only receive a route if
there is an issue with another driver. Sometimes Border
Transfer gives a driver a different route than the one he
signed up for the prior day. The parties dispute whether a
carrier is charged for declining a shift. Border Transfer
often offers drivers extra deliveries in the middle of the
day. Drivers can turn down these deliveries or negotiate for
additional pay beyond the regular per-stop rate.
mornings when drivers arrive for their routes, Border
Transfer holds a short “stand-up” meeting. At the
meeting, Sears and Border Transfer personnel go over new
products, give demonstrations on how to install products,
provide delivery instructions, and discuss safety. Drivers
must attend these meetings, but the parties dispute whether
there are consequences for not doing so. Some drivers claim
they were assigned to standby shifts as punishment for
missing the meetings. Drivers also receive a penalty on their
customer ratings scores if they are late to the meetings.
However, according to other drivers and Rogerio Matos, an
assistant manager for Border Transfer, Border Transfer does
not take attendance and does not impose any consequences if a
driver misses a meeting.
the meeting, Border Transfer gives each driver a manifest
with his delivery route. Sears prepares the manifests, and
Border Transfer assigns them to specific drivers. After
loading packages into the truck and receiving a signoff from
Border Transfer, the driver leaves on his route. The manifest
contains the order of deliveries and time windows for each
delivery, which the driver must follow. Border Transfer
dispatchers monitor each driver's progress throughout the
day. If a driver is not making his deliveries on time, a
dispatcher will check in with him and notify Border Transfer
managers. Because some deliveries involve replacing old
products, drivers must return to the Westwood facility at the
end of the day to return the “haulaway” products.
disputed whether there are consequences for failing to follow
the manifest. According to Matos and DaSilva, there are not,
though DaSilva testified that he did not deviate from the
manifest because it always gave the most efficient route. On
the other hand, Ferreira was chastised for making deliveries
out of order and said Border Transfer did not pay for a stop
if a customer complained that he missed a delivery window.
There is also conflicting evidence about how easy it is to
switch routes. Some drivers reported that, although they can
switch routes, they generally do not because Border Transfer
attributes any issue to the originally assigned driver. But
two drivers that worked for Father & Son said the
Ferreiras decided which routes each driver got and always
gave the easy route to Matteus.
Border Transfer used before early 2017 provides detailed
guidelines for how to deliver and install various products.
Drivers must call each customer thirty minutes before
arrival. They must log when they arrive at and complete each
delivery and secure a signature from the customer. Beyond
logging their progress, drivers only have to contact Border
Transfer if there is a problem with a delivery. The parties
dispute whether drivers can contact a customer directly if
they are running late for a delivery.
consists of fifteen to twenty stops and takes at least ten
hours to complete. Drivers work between four to six days per
week. They generally remain available every day of the week
since they only learn one day in advance of a shift. However,
some motor carriers that own multiple trucks have contracts
with other delivery companies and assign some of their trucks
to other routes. Border Transfer's contract with Sears
forbids it from allowing the drivers to “co-load”
their trucks with deliveries for other companies while they
are on a route for Border Transfer without Sears'
permission. It is unclear whether Border Transfer enforces
Other Aspects of the Job
Transfer requires its drivers to wear a uniform consisting of
a blue shirt, blue pants, a blue jacket, and an armband
containing an Id. The uniform says “Delivery
Pro” on it. Motor carriers order their uniforms from
Border Transfer. Delivery teams cannot leave the warehouse
without the uniform.
motor carriers hire workers of their own as helpers to assist
with delivery routes and/or as secondary drivers to drive
additional trucks. The CCA gives Border Transfer “the
right to request that any personnel of [a motor carrier] not
perform Carrier Services” on its behalf. Dkt. No. 110-4
¶ 6(E). Any secondary driver or helper must pass a
background check and drug test. Motor carriers generally make
hiring, firing, and pay decisions for their secondary drivers
and helpers on their own. The parties dispute, however,
whether Border Transfer requires motor carriers to run hires
by it for approval or has ever told a carrier it could not
hire someone. One driver picked up and dropped off his helper
outside the warehouse after Border Transfer told him not to
use that helper.
carriers own their own trucks, which must be at least
twenty-six feet long. Although the CCA requires trucks to be
white, Border Transfer does not enforce this requirement.
Motor carriers can put only their own names, not Border
Transfer's, on their trucks. Drivers can park their
trucks wherever they want overnight, though many park at the
warehouse with Border Transfer's permission. They can
also take their trucks anywhere for maintenance.
each delivery, Sears asks the customer to rate the driver.
Sears sends ratings on each driver to Border Transfer, which
posts them daily at the warehouse. The top six drivers are
called the “Top Dogs, ” and their carriers can
choose their routes for the next day. Matos stated that
drivers do not have to maintain high ratings to receive
routes, but one driver claimed that Border Transfer assigns
standby shifts or no route at all for low ratings.
Transfer does not limit the amount of vacation its drivers
may take. A driver taking time off can either hire another
driver to cover his routes or notify Border Transfer that he
will not pick up routes for a certain period.
Transfer pays the motor carriers a flat, non-negotiable rate
per stop. It makes a number of deductions from these
payments. First, when a motor carrier starts driving for
Border Transfer, Border Transfer deducts $200 weekly until it
has a $3, 000 “performance bond” per truck.
Border Transfer keeps the bond until the motor carrier
terminates its contract, uses the bond to cover any remaining
property damage claims, and eventually returns the remainder
to the motor carrier. Second, if a customer complains about
product or property damage, Border Transfer pays her and then
deducts the amount from its payment to the motor carrier
whose driver performed the delivery. Third, Border Transfer
makes “No Bill” (“N/B”) deductions to
its motor carrier payments if a scheduled delivery is
cancelled or a driver does not complete a delivery because
the customer is not home, the customer rejects the shipment,
or the driver does not install the product properly. Finally,
Border Transfer deducts the costs of uniforms.
filed a proposed class action complaint on June 23, 2016. The
original complaint named Border Transfer as the sole
defendant and contained claims for violation of the
Massachusetts Wage Act and unjust enrichment. Border Transfer
moved to dismiss both claims. On January 5, 2017, the Court
held that the Wage Act claim was not preempted by the Federal
Aviation Administration Authorization Act of 1994
(“FAAAA”), 49 U.S.C. § 14501(c), but
dismissed the unjust enrichment claim because the Wage Act
provided an adequate remedy at law. DaSilva v. Border
Transfer of MA, Inc., 227 F.Supp.3d 154, 155 (D. Mass.
2017) (DaSilva I).
filed an amended complaint on May 1, 2017, which names
Patrick McCluskey as an additional defendant and contains a
single count for violation of the Wage Act. In substance,
Plaintiffs allege that their misclassification as independent
contractors resulted in unlawful deductions from their pay
for uniforms, property damage claims, performance bonds, and
N/B adjustments, as well as unlawful requirements that they
pay for workers' compensation and cargo insurance. On
November 9, 2017, the Court certified the following class for
liability: “[a]ll individuals who 1) entered into a
Contract Carrier Agreement (or similar agreement) directly or
through a business entity; 2) personally provided delivery
services for Border Transfer on a full-time basis in
Massachusetts (at least 40 hours per week); and 3) who were
classified as independent contractors, at any time since June
23, 2013.” DaSilva v. Border Transfer of MA,
Inc., 296 F.Supp.3d 389, 407 (D. Mass. 2017)
October 8, 2018, Defendants moved for summary judgment.
Plaintiffs filed their own partial motion for summary
judgment on November 20, 2018.
Standard of Review
judgment is appropriate when there is “no genuine
dispute as to any material fact and the movant is entitled to
judgment as a matter of law.” Fed.R.Civ.P. 56(a). A
genuine dispute exists where the evidence “is such that
a reasonable jury could resolve the point in the favor of the
non-moving party.” Rivera-Rivera v. Medina &
Medina, Inc., 898 F.3d 77, 87 (1st Cir. 2018) (quoting
Cherkaoui v. City of Quincy, 877 F.3d 14, 23-24 (1st
Cir. 2017)). A material fact is one with the “potential
of changing a case's outcome.” Doe v. Trs. of
Bos. Coll., 892 F.3d 67, 79 (1st Cir. 2018). “The
court must view the facts in the light most favorable to the
non-moving party and draw all reasonable inferences in [its]
favor.” Carlson v. Univ. of New Eng., 899 F.3d
36, 43 (1st Cir. 2018). When the parties cross-move for
summary judgment, the court must evaluate each motion
“separately, drawing inferences against each movant in
turn.” Lawless v. Steward Health Care Sys.,
LLC, 894 F.3d 9, 21 (1st Cir. 2018) (quoting EEOC v.
Steamship Clerks Union, 48 F.3d 594, 603 n.8 (1st Cir.
burden on a summary judgment motion first falls on the movant
to identify “the portions of the pleadings,
depositions, answers to interrogatories, admissions, and
affidavits, if any, that demonstrate the absence of any
genuine issue of material fact.” Irobe v. U.S.
Dep't of Agric., 890 F.3d 371, 377 (1st Cir. 2018)
(quoting Borges ex rel. S.M.B.W. v. Serrano-Isern,
605 F.3d 1, 5 (1st Cir. 2010)). If the movant meets this
“modest threshold, ” the burden shifts to
non-movant to “point to materials of evidentiary
quality” to demonstrate that the trier of fact could
reasonably resolve the issue in its favor. Id. The
court must deny summary judgment if the ...